Sicurella v. United States/Dissent Minton

Mr. Justice MINTON, dissenting.

The findings and classification made by the Selective Service Board and the Appeal Board are final. 50 U.S.C.App. (1952 ed.) § 460(b)(3), 50 U.S.C.A.Appendix, § 460(b)(3). This Court does not sit as a court of review. It is not our province to substitute our judgment of the facts for that of the Board or to correct the Board's errors of law unless they are so wanton, arbitrary and capricious as to destroy the jurisdiction of the Board.

This Court said in Estep v. United States, 327 U.S. 114, at pages 122-123, 66 S.Ct. 423, at page 427, 90 L.Ed. 567:

'The provision making the decisions of the local boards     'final' means to us that Congress chose not to give      administrative action under this Act the customary scope of      judicial review which obtains under other statutes. It means     that the courts are not to weigh the evidence to determine      whether the classification made by the local boards was      justified. The decisions of the local boards made in     conformity with the regulations are final even though they      may be erroneous. The question of jurisdiction of the local     board is reached only if there is no basis in fact for the      classification which it gave the registrant.' (Emphasis      added.) In that case, Estep had claimed that his classification was made arbitrarily and capriciously. This is always a question of jurisdiction. Was the Board acting in wanton disregard of its legal boundaries? If it was not, but made what we might consider an honest mistake in judgment, this Court should not intervene.

In the instant case, the Court does not say that the Board acted capriciously and arbitrarily or that the judgment of the Board was not an allowable judgment of reasonable men. The Court states that a mistake in advice was made by the Department of Justice to the Appeal Board.

'The report of the Department of Justice * *  * clearly bases      its recommendation on petitioner's willingness to 'fight      under some circumstances, namely in defense of his ministry,      Kingdom Interests, and in defense of his fellow brethren',      and we feel that this error of law by the Department, to      which the Appeal Board might naturally look for guidance on      such questions, must vitiate the entire proceedings. * *  * '

It will be noted that the Court says there was error of law not by the Appeal Board but by the Department of Justice, whose recommendation is purely advisory and not binding upon the Appeal Board. 50 U.S.C.App. (1952 ed.) § 456(j), 50 U.S.C.A.Appendix, § 456(j). The Court concludes that the Department of Justice committed an error of law by recommending to the Appeal Board that the petitioner be denied conscientious objector classification because of petitioner's willingness to 'fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren.' The record in this case clearly establishes that this was the position and attitude of the petitioner as a faithful Jehovah's Witness. Petitioner says he is opposed to fighting a secular war but is not opposed to fighting a religious war where the interests of his sect are involved. This does not meet the test of the statute, 50 U.S.C.App. (1952 ed.) § 456(j), 50 U.S.C.A.Appendix, § 456(j), which provides:

'Nothing contained in this title (sections 451-454 and 455     471 of this Appendix) shall be construed to require any      person to be subject to combatant training and service in the      armed forces of the United States who, by reason of religious      training and belief, is conscientiously opposed to      participation in war in any form.'

The petitioner is not opposed to 'participation in war in any form.' That is the congressional test. On the contrary, he reserves the right to choose the wars in which he will fight. The petitioner refused even to be inducted for any kind of limited service, combatant or otherwise.

The Court's opinion gives the impression that the petitioner and his sect would not use force. In petitioner's own statement to the Board, he contradicts such a position. SSS Form No. 150, filled out by the petitioner and submitted to the Board, contains the following question and answer:

'5. Under what circumstances, if any, do you believe in the     use of force?

'Only in the interests of defending Kingdom Interests, our     preaching work, our meetings, our fellow brethren and sisters      and our property against attack. I (as well as all Jehovah's     Witnesses) defend those when they are attacked and are forced      to protect such interests and scripturally so. Because in     doing so we do not arm ourselves or carry carnal weapons in      anticipation of or in preparation for trouble or to meet      threats.' This answer clearly shows that the petitioner and his sect will fight for Kingdom interests, whatever that is, preaching work, their meetings, their fellow brethren and sisters, and their property. They do not, they say, carry carnal weapons in anticipation of attack, but they will use them in case of attack. This evidence clearly supports the District Court's finding of guilt; and the conclusion of the Selective Service Board based on such evidence was an allowable one.

I think the Department of Justice might very well have believed petitioner did not meet the test laid down by Congress. By accepting the Department's recommendation, the Board might have been mistaken, but it was an honest mistake. There is not the slightest intimation of arbitrary or capricious conduct on the part of the Board.

Because we do not sit to review errors of fact or law unless the latter be so arbitrary and capricious as to destroy the Board's jurisdiction, and because I think the decision of the Appeal Board, even if the Board accepted and relied upon the recommendation of the Department of Justice, was an honest opinion and, therefore, an allowable judgment not arbitrarily and capriciously made, I would affirm.